§ THE DUKE OF MONTROSE rose to call attention to the need of control of advertisements in the country as applicable to Scotland, and as governed by the Advertisements Regulation Acts, 1907 and 1925; and to move for Papers. The noble Duke said: My Lords, in moving the Motion that stands in my name I should like to say that I speak on behalf of the Association of County Councils in Scotland, the Society for the Preservation of Rural Beauty, the Scapa Society 1172 and the Scottish Travel Association. I think your Lordships will admit that this is a fairly representative body of public opinion. About two months ago I was invited by the Secretary of State for Scotland to become President of the Scottish Travel Association, which he was forming and which was to be analogous to and affiliated to the Come to Britain movement, of which the noble Earl, Lord Derby, is President. The object of the Scottish Travel Association, as of the Come to Britain movement, is to invite visitors to come to this country. It was said that last year something like 400,000 visitors came to Britain, and left behind them £15,000,000. It is also said that 1,000,000 visitors went to Francs and the same number to Germany, and left behind them over £100,000,000 in each country. Your Lordships will see, therefore, that this movement for inducing tourists to come to this country is one of considerable importance seeing that it means bringing money to the country in this time of depression.
§ We in Scotland have all the essentials which make for the success of the movement. We have had an exciting history in the past, we have many places of romance and many places of public interest and, above all, from the point of view of colour and beauty, of mountains, valleys, rivers and lochs, we have a country absolutely unsurpassed for beauty in Europe. From the point of view of our Scottish people, therefore, it is our desire, our ambition and our duty to preserve these blessings of nature in our country. The Minister of Transport very recently sent a circular to all our local authorities in which he said he was very gravely concerned to observe that, just as our great arterial roads were being completed at vast expense, so the enjoyment by the people of these highways was being spoilt by the ever-increasing and unsightly display of advertisements, and he appealed to all our local authorities to see if they could do something to stop this abuse. Time has gone on and nothing has been done. The abuse of the display of unsightly advertisements is increasing.
§ Your Lordships are well aware, of course, that there are two Acts of Parliament that control the display of advertisement—the Advertisements Regulation Acts of 1907 and 1925. Your Lord- 1173 ships will ask why the Scottish people have not made use of these Acts. In England every county except one has passed by-laws under those Acts to control the display of advertisements, and of the municipal and county boroughs of England fully 18 per cent. have made use of these Acts. In Scotland, on the other hand, only one county has done so, and that is the County of Roxburgh. It is said that they obtained their by-laws through the inadvertence of the Scottish Office. Your Lordships will ask why it is that there is such activity in the matter in England and such sluggishness in Scotland, since the law is the same in England as it is in Scotland. Yes, the law is exactly the same; the difference is in the way in which it has been interpreted by the Home Secretary in England and the Secretary of State for Scotland in Scotland.
§ Your Lordships will understand that, when you come to frame by-laws dealing with the preservation of rural beauty and amenities from a display of all kinds of advertisements that may be unsightly, it is almost essential that the by-laws should be framed in general terms. A thing that is beautiful in one place may be very ugly in another. A Thames-side bungalow, for instance, may be a beautiful thing at Maidenhead, but it would be an atrocity in the middle of Glencoe. Altogether, views are wholly different in different places, and your Lordships will understand how very difficult it would be to deal with all these different views. If any of you were to take a drive across the County of Perth, with notebook and pencil, how would you like to try to deal with every single view, on every side of the road from every conceivable angle, that might be spoilt by every kind of advertisement? You would soon come to the conclusion that it was an impossibility to define the indefinable. In England by-laws stated in general terms have been accepted, but it is the rigid particularisation by the Secretary for Scotland that has stopped all progress in dealing with advertisements there.
The whole question whether it is really essential to particularise and detail our by-laws was decided in 1926 in a Court of Law, in an action by the United Bill Posting Company against the Somerset County Council. I am not going to trouble you with the whole statement of the case, but it was a case that raised
the question whether it was really essential to schedule and particularise every detail in a by-law. I quite understand that it is necessary to make a by-law as clear as possible to a possible offender who may be prosecuted for his offence; but some latitude and reason must be allowed in the matter. In his judgment in this action the Lord Chief Justice used these words:—
In my opinion this by-law, dealing with the necessarily somewhat ambiguous matter of the natural beauty of a landscape, has condescended to all the requisite particularity, and is not to be held invalid on the ground of uncertainty. It is not to be assumed, in the construction of this by-law, that there will be caprice on the part of those who have to administer it; on the contrary, one has to remember that here is an elected local authority entrusted by the Legislature with these powers, and the assumption which is to be made is that this by-law will be administered in a spirit of reason and good sense.
I feel confident that if we had by-laws in Scotland framed in general terms, as in England, our local authorities would be no more capricious than their colleagues in England, and I have every confidence that our Scottish advertisers would accept the ruling of what is, or what may be, unsightly or detrimental to rural amenities, in the same good spirit as is shown in England, if given the chance.
§ As to the question of being vague or detailed in a by-law, why in the Town Planning Acts provision is made to give the local authorities power to control the elevation of a building, but no requirement is made as to the site of every building being specified, or what kind of elevation is necessary. The question of each building is settled on its merits. Again, in the Petroleum Consolidation Act, Section 11, power is given to control petrol-filling stations, but the same vagueness and generality as to details is allowed, and each case has to be dealt with on its merits. Is it consistent to allow generality in the ease of buildings and petrol-filling stations, and to deny the same in regard to the unsightliness of advertisements in the countryside? If it is inconsistent, it is still more inconsistent for the Secretary of State for Scotland to come to us and ask us to do everything we can to bring visitors to Scotland and then go and do everything in his power to drive them away. I think it is reasonable to ask that in view of present day circumstances the 1175 Secretary of State for Scotland might be invited to reconsider his views, and to give us a chance of framing our by-laws exactly as they are framed in England. If they fail, then a case has been made out for fresh legislation, but knowing the state of congestion of business in the two Houses we do not want to add to the legislation. All we ask is an opportunity to use the measures already in existence, which lie ready to our hands. I beg to move.
My Lords, I rise to support the Motion of the noble Duke in a very few words. He has dealt fully with the reasons for bringing in the Advertisements Regulations Acts in the first place, and I do not propose to follow him in those reasons, but I do wish to raise a point which perhaps he has not brought out as clearly as I will attempt to do, and that is the whole principle involved in the refusal of the Secretary of State for Scotland to agree to regulations which have been framed under an Act of Parliament, and regulations which have been framed on similar lanes in England and which have been approved and are in use in England, and have been declared to be legal by the law of England. The Scottish county councils have informed the Secretary for Scotland that they are prepared to bear the expense of any prosecutions that may be brought under those regulations. The Secretary for Scotland has informed the county councils that he is not prepared to give them the permission, or to approve those regulations at all. The county councils have, in a letter to the Secretary of State for Scotland, informed him that they consider that that is usurpation of the powers of the Courts of Scotland. That is perfectly true. It is usurpation of the powers of the Courts of Scotland, but I would go further and I would venture to assert that it is usurpation of the powers of Parliament, because these Acts were passed with the special object of having regulations framed under them, for the purpose of controlling the situation which the noble Lord has pointed out to us.
This is one of the questions which is of the greatest importance to-day, because since the War we have had a great deal of legislation which is only the framework of the special matters with which it has to deal. The result is that in legislation such as we are discussing to-day, the greater part of it—that is the 1176 missing part—is not to be found in the legislation itself but in the regulations which are passed under it. If we are to reach this situation, that laws are to be passed by Parliament and those laws indicate that regulations are to be passed under them, and then our Departments of State are to say that those regulations are so badly drafted that they decline to allow them to pass the Courts of Law, then I say that we have come to a pretty pass indeed, and I venture to suggest to the noble Lord who will reply that he should take that point very seriously into consideration, as to whether the Scottish Office, as led by the Secretary of State for Scotland, is not acting to-day in a manner which isultra vires in declining to allow these regulations to become part of the law of Scotland. I have great pleasure in supporting the Motion.
My Lords, I desire to say a few words further in support of the noble Duke who has introduced this matter. I also am a member of a society on whose behalf he is speaking, but I have a further interest in this matter, inasmuch as the county council of which I have the honour to be Chairman first passed by-laws in the year 1908, under the Act of 1907, and again in 1927 under the subsequent Act, and that, be it noted, is after the judgment given by the Lord Chief Justice in the case of the United Bill Posting Company against the Somerset County Council. In both cases the Secretary of State for Scotland refused to confirm the by-laws on the ground that they were too vague and it was necessary to specify exactly what particular views were to be protected. That objection has been upheld ever since. I do not know that I can altogether join with my noble friend in his condemnation of the action of the Secretary of State for Scotland, or rather of successive Secretaries of State for Scotland at different dates, because I understand that they are fortified by a strong legal opinion in that action. It is, of course, not the case that even a judgment of the Supreme Court in England is necessarily effective in guiding the decisions of the Scottish Courts.
Some time ago the County Councils' Association took the opinion of a leading Parliamentary counsel on this matter, and I am bound to say that he was strongly inclined to agree with the view maintained, I understand, by successive 1177 Scottish Law Officers of the Crown that such by-laws would not be upheld in the Scottish Courts, on the ground that they were penal by-laws, and that anyone might unknowingly make himself liable to a penalty which he could not possibly foretell; and I must admit that one sees some force in that argument. Perhaps I might be allowed to quote from our county council by-law, which was particularly objected to. It is in part as follows:—No person shall exhibit or permit or cause to be exhibited any advertisement so as(a) To affect injuriously the amenities of a public park"—That is not so difficult, because one can quite well define a particular public park which it is desired to protect; but the second and third paragraphs are as follows:—(b) To disfigure the natural beauty of a landscape or(c) To disfigure or injuriously affect the view of rural scenery from a highway or railway or from any public place or water,Those, one must admit, are much more vague. If I were an advertiser I might conceivably erect a sign, beautifully made of wrought iron and, as I thought, an embellishment of the view, but I could quite well conceive that a Court might say that it was a disfigurement. There is some force in it. But it is quite a contrary principle to make persons liable to a penalty which they cannot foresee.
I do not think that the case quoted by the noble Duke under the Town Planning Act or, still more, the case of petrol filling stations is quite on all-fours, because applications for petrol-filling stations have to be made to the county council before they are put up, and we then have the opportunity of deciding whether they are to be passed, and whether or not they are in the right situations. The same, of course, applies to buildings, but under our building bylaws we have all the plans of new buildings submitted to the county council for approval or disapproval, and it is a very common practice in our county council to refuse to pass such plans unless they are modified in some way, in most cases for the safety of the highway. So I do think there is some force in this difficulty.
It is much more difficult to see how the evil is to be remedied. I am entirely at 1178 one with those who have already spoken as to the great need for some protection for our views in Scotland. I tried to think the other day from the top of a hill where a road crosses over, with very extensive views, how it would be possible to define those views, and I came to the conclusion that it was absolutely impossible. And the same observation applies to coast views. You cannot define every yard which is to be protected; and yet, on such a road as I have in mind, a hateful, flashing, reflecting sign has been stuck up as an advertisement for a market gardener, which flashes back on you whenever the sun shines in late afternoon, disfiguring the still beautiful piece of road in the neighbourhood of a very fashionable watering place—not so beautiful as it used to be, owing to road widenings, but still one that ought not to be disfigured by such signs as that. I have wished that we might have a test case in the only county in which the bylaws were passed, the County of Roxburgh. That, of course, might solve the matter. I happen to own a small farm there, and I have sometimes wondered whether I might not get a perfectly hideous advertisement devised and put up there, but I was afraid that the county council might not think the view worth preserving, and might leave my obnoxious advertisement alone, for I understand that they are not particularly anxious to have a test case, and have their by-laws pronounced invalid. I have more than once proposed to bring such a case by offering to pay the expenses of the case.
How, then, is this evil to be remedied? I understand that good legal opinion—and I have consulted a good many people—says that the only way is to give power to the local authorities (and I am afraid it will require new legislation) to license the advertisements—a licensing power within certain limits. In that way, of course, the plans would have to be submitted beforehand, and approved or disapproved as the case may be. I do not think that any local authority would act in an arbitrary manner, and in any case the would-be advertiser would not make himself liable to a penalty in ignorance. If this be the case, and if the legal advisers of the Scottish Office to-day are of opinion that legislation is necessary, I would strongly appeal to them to introduce such legislation. The 1179 noble Duke has already referred to the anxiety displayed by the Secretary of State for Scotland and the Under-Secretary to bring many people to Scotland. Well, it is no use bringing people to Scotland in their multitudes if our views are disfigured and disgraced. It is less easy, perhaps, to protect our views than some of those in England. We have not the many picturesque and beautiful villages, we have not so many magnificent churches; our views are of a wider nature—the width of mountain and glen, our extensive sea coasts and so on. You cannot define these views, but they may be irretrievably spoilt by a multiplication of advertisements.
So, I venture strongly to appeal to His Majesty's Government to take steps to assist us in Scotland to protect our natural beauties, whether by passing bylaws and running the risk of by-laws already passed by many of the local authorities being disallowed in the Courts; or else by introducing legislation to make it possible. I cannot believe that such legislation would be seriously opposed to-day. It might, of course, be said that it would interfere with the rights of property owners, and that any man ought to be allowed to erect anything, however hideous, on his own property. But I think the day is gone when such views would carry any weight, and that we should all unite in approving of any measure which would be really effective in preserving the natural beauty of our land.
§ THE UNDER-SECRETARY OF STATE FOR WAR (LORD MARLEY)
My Lords, I will do my best to explain the reasons for the differences of treatment as between England and Scotland which have been raised by the noble Duke, and to suggest certain alternative methods of dealing with the problem, which I hope may prove to be satisfactory. In the first place, I should like to thank the noble Duke for having written to my noble friend the Leader of the House, explaining the lines upon which he was going to move this Motion. I am very grateful for his courtesy. It has been of much assistance. The question of advertisements in Scotland is, of course, of immense interest, and the Government are very much obliged to those who have drawn attention to this matter. The Government are entirely in agreement 1180 with the noble Duke and other noble Lords who have spoken as to the need for regulation. In point of fact, I think it is merely a question of method. Anybody who has been to Scotland must realise the danger of the beautiful scenery there being damaged and spoilt by objectionable advertisements.
Reference has been made to the fact that we have not the same beauties in England. Some at least of our beauties have been spoilt by Scotch advertisements. We do not want Scotland to suffer from the same type of advertisement as we have to suffer under in England, despite our by-laws. I do not want to deal with the question of petrol pumps because, as the noble Lord, Lord Polwarth, pointed out, that is a separate problem. The Secretary of State was particularly grateful to the noble Duke for consenting to act as honorary President of the Scottish Travel Association. He desires me to say that he is giving full support to that movement and will do its utmost to secure its success. I have not consulted my right hon. friend the Chancellor of the Exchequer, but I am perfectly certain that his somewhat dry mouth would water at the idea of the millions that tourists might leave behind them if we can only get them in sufficient numbers, particularly in Scotland.
The difficulty regarding by-laws made under the Advertisements Regulation Acts has been in existence for a great many years. It is not a difficulty of objective; it is purely a difficulty of method. In the form in which the question has been raised during the past few years by the Association of County Councils in Scotland, broadly speaking the point has been as it was put by noble Lords opposite who have spoken; that is to say, the Secretary of State has not felt able to confirm by-laws which are couched in general language. Let me quote the actual language of the Advertisements Regulation Act. 1907. Section 2 (2) provides that any local authority may make by-lawsfor regulating, restricting, or preventing the exhibition of advertisements in such places and in such mariner, or by such means, as to affect injuriously the amenities of a public park or pleasure promenade, or to disfigure the natural beauty of a landscape.1181 That Act has been modified by an Act passed six years ago, under which the powers of the local authority under the original Act….shall include powers to make by-laws for regulating, restricting or preventing within their district or any part thereof the exhibition of advertisements so as to disfigure or injuriously affect the view of rural scenery front a highway or railway, or from any public place or water;and a number of other places. Those are the general provisions under which it was hoped that by-laws would be made.
Ever since those Acts became law successive Secretaries of State for Scotland have taken the same point of view. They have, as the noble Lord who spoke last observed, consulted with their legal advisers and are advised that they would not be justified in confirming by-laws framed in these general terms. The terms of the by-laws which have been suggested to my right hon. friend virtually reproduce the words of the Act, and the Secretary of State feels that it would be far better if a much more limited application could be made to the particular places which it is desired to protect. He believes, and I hope your Lordships will agree when have pointed out certain factors, that it is possible so to particularise places as to secure adequate protection. The question of Roxburgh has been quoted. It is a fact that the Roxburgh by-law was passed in 1919, I think inadvertently. My right hon. friend the present Secretary of State had nothing to do with it; it was confirmed in 1919 and is in very wide terms. As a matter of fact according to the advice that has been given it would be difficult to obtain a conviction under that by law; so, if the noble Lord, Lord Polwarth, erects an offensive sign, he will probably be perfectly safe from a legal point of view, though I hope the opinion of your Lordships' House would induce him to take the advertisement clown after it had been seen.
One example that I have in front of me of by-laws which the Secretary of State has not been able to confirm is of by-laws proposed by the County of East Lothian, and I would like to read out to your Lordships their suggestions. The by-laws say this:—No person shall exhibit or permit or cause to be exhibited any advertisements so as1182(a) To affect injuriously the amenities of a public park or pleasure promenade.…There is no possible objection to that; we are entirely in favour of it.(b) To disfigure the natural beauty of a landscape"—That is very broad.(c) To disfigure or injuriously affect the view of rural scenery from a highway or railway or from any public place or water.That is simply a reproduction of the words of the Act. Then there are suggestions as to villages and historic or public buildings or monuments with which the Secretary of State is entirely in agreement.
We believe it is possible to realise that these general by-laws may actually have the effect of making the conditions worse. It is a fact that the High Court in Scotland interprets the law as to uncertainty in penal provisions more strictly than it is interpreted in England. Therefore, you might have a state of affairs under which an offensive advertisement was put up and, when the general by-law was brought into play, the Court might say that from the point of view of uncertainty they were not prepared to convict and, therefore, the man who put up that offensive advertisement might be confirmed in his right to put it there, and nothing could be done to remove it. The alternative is the possibility of particular by-laws. I have here an example of by-laws made by another county in Scotland, Wigtown, in which all the particular views which they desire to protect are mentioned.
Your Lordships will bear with me if I quote from these by-laws because this matter is of importance:—No person"—say the approved Wigtownshire by-laws—shall exhibit, or permit or cause to be exhibited, any Advertisement on the Rocks or Cliffs adjoining the following Roads, or on the Rocks or Cliffs on the Seashoreex-adverso of the said roads.And they name the road between the Cock Inn, in the parish of Old Luce, and Alticry Burn, in the parish of Mochrum; the road in the parish of Inch between Cairnryan Village and the Galloway Burn, and the road in the parish of Kirkmaiden between the entrance to the road leading to Kirkbride Farm and the entrance to the road leading to Grennan 1183 Farm. Those are examples of particular views or roads or scenery from roads which that county council desired to protect in by-laws which have been confirmed by the Secretary of State and which the county council have found to give—
THE DUKE OF MONTROSE
I am sorry interrupt the noble Lord, but may I ask when those by-laws were issued?
§ LORD MARLEY
The date of approval by the Scottish Office was December 11, 1928. There are a number of other points in these by-laws with which I do not wish to weary your Lordships. Suffice it to say that it is in fact possible to particularise views of beauty spots, to prevent advertisements in particular places and so on, provided, I suggest, the county council will take the trouble to go into and define the areas it is desired to protect.
§ THE EARL OF STAIR
May I ask the noble Lord whether it is necessary to particularise to that extent? I was responsible for the order.
§ LORD MARLEY
I am not prepared to say how far it is necessary to particularise, but I am advised that my right hon. friend is particularly anxious that we shall specify the areas we desire to protect and not leave it as general as in the principal Act. There are many reasons for that.
THE DUKE OF MONTROSE
Those bylaws in Wigtownshire were issued before the recent Local Government Act which came into force last year. The county area was made the area of authority and parish councils were swept away, and I cannot see the use of beginning to split up the county again and honeycomb it into small areas when we have just abolished that.
§ LORD MARLEY
If I may be allowed to say so, it is the county council for the whole of the county area which is making these by-laws. The point is that a county in Scotland is a particularly large area, and it may have within its area industrial places which are not places of beauty, I am sorry to say, as 1184 well as rural places which are places of beauty, and which we should wish to remain beauty places. Take the County of Inverness, stretching from the east to the west. How can a by-law generally applicable to the whole county really be suitable for, say, the Caledonian Canal on the one hand and the Electric Power Works at Fort -William on the other hand? I suggest to your Lordships that it would be far better to particularise, however broad the particularisation, rather than make a general suggestion which is not really applicable to the whole of a large county. The noble Lord, Lord Polwarth, reminded your Lordships that the Scottish Association of County Councils has taken counsel's opinion on this question, and received the same advice as has been given to the Secretary of State for Scotland. What, therefore, is the good of flying in the face of legal opinion, which, after all, will have to interpret these bylaws when the cases come to be fought in the Courts?—flying in the face of express legal opinion, both that available for the Scottish Office and that available for the Scottish Association of County Councils.
I suggest that perhaps it is not really advisable to do that, and that we could get the results which we all desire for the protection of the beauty spots in ways other than by the issue of general bylaws which would not be upheld in the Courts of Law. Let me see if I can put forward some alternative suggestions which may meet with the approval of those of your Lordships who are so interested in this matter. The Secretary of State is very anxious to give the fullest consideration to any alternative suggestions. He himself and his predecessors have put forward a suggestion that the particular areas should not be quite as narrow as those of the Wigtown County Council, but nevertheless should not be made for the whole of the county but should be limited to certain specified areas. That means that you need not say that you protect the view from a given spot, but that you will protect the whole of a particular area from being desecrated with offensive advertisements. The Scottish County Councils' Association some years ago did seem to accept the principle of the scheduling of particular areas.
1185 I see that in 1921 the then Secretary for Scotland informed the County Councils' Association that he would not be justified in confirming the wide bylaws, but he suggested an alternative form. In reply, in 1922, the Association intimated that they considered the suggested by-law was not of value if it meant that each particular view must be specified. They added, however, that if it were competent to schedule the whole of certain districts they would be prepared to consider that, and they themselves then suggested another alternative. They suggested this:—No person shall in any areas hereinafter specified exhibit any advertisement on any hoarding, stand, wall, or other erection (or on any rock or cliff) so as to be visible from any public park, railway, highway or public path or to disfigure the natural beauty of any landscape.That, again, the Secretary felt was too general, and he then suggested another alternative. I commend this to the attention of the noble Duke, because we have been waiting for nine years for a reply from, the Scottish County Councils' Association to this suggestion which I am now going to read. There was no Labour Party in power at that time and the Secretary for Scotland then—
§ LORD MARLEY
Well, we have been waiting nine years for a reply from them, so that we are nearly quits. This was the suggested alternative form:—No person shall in any of the areas hereinafter specified exhibit any advertisement on any hoarding, stand, wall, or similar erection, or any rock or cliff so as to be visible from any public park or pleasure promenade and to affect injuriously the amenities of such park or promenade or so as to disfigure the natural beauty of a landscape.The Secretary added that local authorities would require to take the chance of having such a by-law disallowed in the Courts. I hope that we shall now have a reply to that suggestion. I commend it as a possible way to deal with this matter on the lines of the particularisation of the by-laws. Perhaps, however, this is not the best way of dealing with the matter, since there is the possibility that what is involved is a question of taste.
1186 One of the noble Lords who spoke referred to the possibility of an iron erection being considered beautiful by some people and extremely ugly by others. It is a matter of taste. You may have in England at any rate county councils with bad taste. I do not say you have them in Scotland, but there is a difficulty in which possibly individual cases ought to be judged on their merits, and therefore there has been growing up for a number of years alternative methods of dealing with this matter. In another place a short time ago a Bill was introduced entitled the Rural Amenities Bill.
THE EARL OF CRAWFORD
That is not passed into law. Cannot we deal with the law as it exists instead of with Bills?
§ LORD MARLEY
I am suggesting alternative methods and Bills do become law sometimes, despite difficulties in one House or the other.
§ LORD MARLEY
I think, on the whole, Bills become law as regards Scotland more frequently than as regards England in this House. I do not want to detain your Lordships too long, but I think it is important, as the matter has been raised, that we should try to study it from every aspect. Clause 14 of the Rural Amenities Bill says:—Proceedings to restrain the continued exhibition of any advertisement or advertisement hoarding prejudicial to rural amenities may be taken in the county court by the council of the county in which the advertisement or advertisement hoarding has been erected, or by the authority responsible for any town planning scheme which prohibits any such advertisement or advertisement hoarding, and the court may order the removal of the same within such time as the court may prescribe.That is a possible way of dealing with this matter, through new legislative enactments which I am sure your Lordships' House would desire to consider. In the course of the debate on that Bill—which received a Second Reading in another place, I may say—the Government announced that it was their intention to introduce a measure to extend the law relating to town planning, so that there should be preservation of rural amenities, and that they accepted the principle of that measure. In town-planning schemes in this country 1187 —in England—local authorities usually insert clauses to make provision for the prior consent of the local authority to the display of advertisements. That may be extended to Scotland in town-planning schemes especially to rural areas near the towns.
There is one other method I would like to mention, because it is applicable particularly to Scotland. In the case of Edinburgh about a year ago a Local Act was passed—not a by-law, but a Local Act—dealing with the nuisance caused by noise and empowering the local authority to apply to the Courts for its abatement. We have already dealt with smell and we are now dealing with noise. It seems not unreasonable that we might in the same way deal with advertisements by empowering local authorities to apply to the Courts to abate a nuisance to the sight. I am not sure about this, but I think we might be able to extend the definition of a nuisance to sight as well as to smell and hearing. Lastly, let me say that the by-law system in England is not proving altogether satisfactory. The by-law system in England is known to be not entirely satisfactory and, therefore, it would be a pity to extend in Scotland a system which has not, in fact, proved quite satisfactory in this country. In other words, we have tried it out in England. England has had to suffer from a system which is not quite satisfactory, and it would be better to learn from that experience and extend new methods to the preservation and protection of Scotland.
Would the noble Lord tell us in what way it has proved unsatisfactory? Will he be more specific?
§ LORD MARLEY
I do not want to detain your Lordships' House, but I think I might remind your Lordships that advertisements are much worse in the countryside in England than in Scotland. I think that is sufficient explanation of what I say. The Secretary of State has asked me to say on his behalf that he would welcome a full exploration of all such solutions as can be found, and he would propose as a result of this debate this afternoon to discuss these and any other suggested alternatives with representatives of local authorities and others concerned from Scotland. I hope the noble Duke who put down this Question will think that is a reasonable sug- 1188 gestion and will feel that the Secretary of State is giving a chance—to use his own words—to the local authorities to protect their areas, and that he will accept that suggestion and not press his Motion for Papers.
THE EARL OF CRAWFORD
My Lords, it is very obliging of the Secretary of State for Scotland, after an Act has been in existence twenty-five years, to be so good as to offer an exploration of the best methods of meeting its requirements. What Scotland really requires is that these Acts of Parliament, enforced in scores and scores of counties and the areas of other local authorities in England, should be frankly and fearlessly enforced in Scotland. I have listened with consternation to the small legal points which the noble Lord, Lord Marley, has brought before us telling us of the efforts of successive Lords Advocate and Scottish Law Officers—supported, presumably, by their Secretaries or their Secretaries of State—to prevent the desire of Parliament that Scotland should have and should exercise the same rights in these matters as England. Now the Secretary of State suggests that local authorities—our county councils in Scotland, our municipal authorities in Scotland—should be put to the intolerable nuisance and expense and waste of time of coming to your Lordships and the House of Commons to secure Local Acts in order to carry out the rights which they possess under Statute of the Realm. I think it is really intolerable.
§ LORD MARLEY
I must interrupt the noble Earl by pointing out that I suggested that there was not one method but several methods. The method I emphasised particularly was the method of particularisation of the places it is desired to protect. The other is merely a suggested alternative.
THE EARL OF CRAWFORD
Yes, and the alternative was that somebody or other—it was not specified who—should introduce in Parliament a Bill comparable to the Bill introduced last year which was applicable only to England. I say that Local Acts or Amenity Acts are not necessary so long as we are conscious that a succession of high authorities in Scotland are determined—and effectively determined too—that no action shall be taken against the abuses of advertisement. 1189 The noble Lord, Lord Marley, says that the Acts in England are a failure because we see so many advertisements in England. I am quite ready to admit that the abuse of advertisement in England is only mitigated and not destroyed by the Acts of Parliament we have got, but at least there is a great deal more done in England by central authorities and local authorities, and in many counties an effective check has been imposed. The fact that there are many more advertisements in England than in Scotland is clearly owing to the fact that the population in England is not only larger but much more opulent than that north of the border.
The Scottish Office and Lord Harley are preventing the county councils of Scotland form enjoying the freedom in passing bylaws enjoyed by the county councils in England. Parliament ordered that local authorities should have this discretion. At every stage in Scotland that discretion is limited and restricted by the opinion of the Law Officers and by the forces of successive Secretaries of State and, for some reason or other, for twenty-five years the power to tackle this matter in Scotland has unfortunately been smaller than that which has been freely exercised in England. Lord Marley says that it is a matter of taste. Suppose it is a matter of taste, what does that signify? The definition speaks of disfiguring natural beauty or injuriously affecting a view. Clearly that is a matter of taste, because it is not something that can be measured as one can measure a thing that is tangible or can be weighed in the hand. But that is the decision of Parliament. An Act of Parliament could not be scheduled to show that the road from this point to that point must have no advertisements. That must be in the discretion—
§ LORD MARLEY
I must really protest against the noble Earl's travesty of what I said. Your Lordships will bear me out. What I said about a matter of taste was in connection with one of the alternative methods of dealing with the matter. I did not say that the interpretation of the Act of Parliament was a matter of taste. That is a mere travesty of what I said. It is quite unfair to put words into my mouth that I never used. I must protest.
THE EARL OF CRAWFORD
The last thing that I want to do is to be unfair to the noble Lord, and I apologise if I was. From my point of view, I think it is a matter of taste whether a particular advertisement injuriously affects a particular bit of scenery. I think it is a matter of taste whether a natural view is disfigured by advertisements. I do not know why the noble Lord should be so much offended.
§ LORD MARLEY
I did not say that the Act was a matter of taste. The noble Earl says that I said it was a matter of taste. I did not.
THE EARL OF CRAWFORD
—and apologise; but I regret also that it was not considered a matter of taste by the noble Lord, for, in point of fact, that is precisely what it is. The local authorities have this duty imposed upon them of settling the very question of whether this view or that is one that might be or is being injuriously affected by advertisements. I suppose that if Lord Marley wants an exploration, an exploration must be made, but I hope that the noble Lord will not press the local authorities to have Local Arts in order to secure powers which they already possess. Let me just ask one precise question of the noble Lord. He quoted by-laws made by the county of my noble friend beside me, Lord Stair, in which the names of places are given, between which roadways exist on which a particular type of advertisement is forbidden. Will Lord Marley tell us if, in the opinion of the Scottish Office, it is sufficient for the authorities to say that the road from Inverness to Perth, or from Perth to Lochearnhead, passes through a line of country in which advertisements shall be barred if the local authorities so desire? If he says that, I am satisfied. If that is the case, let him say so, and no more explanation is required.
§ LORD MARLEY
I can only say that I understand that it is possible to schedule a definite road for protection. Of course, I must take advice as to how far that is the case, but I understand that it actually is the case. That will be one of the things that will be explored.
THE EARL OF CRAWFORD
No, no: we do not want to explore it if the Secretary of State says that he is going to authorise it under the Act. If he says that, I have no more to say. I understood that Lord Marley gave that pledge for the Secretary of State.
§ LORD MARLEY
I understand that this was actually done in the case of Wigtownshire. So far as I understand it, it was laid down that no person was to exhibit or cause to be exhibited any advertisement on the roads between specified points. That is a question of interpretation, but I am quite certain that, if any county council will put forward a suggestion for the scheduling of a road, it will receive very careful consideration.
§ LORD DANESFORT
My Lords, it may seem a little audacious for one who was not born north of the Tweed to take any part whatever in this discussion, but let me say, as one who is not a Scotsman, that I have been astonished to hear the position that has been proved to exist by the speeches made this afternoon. Here are two Acts of Parliament, framed in identical terms, one twenty-three years ago and the other six years ago. They both apply to Scotland and to England equally. It is admitted that in England much effect has been produced by the operation of the Act. It is equally admitted that Scotland has had hardly any benefit at all.
§ LORD DANESFORT
It is admitted by the noble Lord, Lord Marley, that the system has not succeeded very well in Scotland. The noble Earl, Lord Crawford, has said that, although the result has not been all that could have been desired, the Act has done a very great deal in England to preserve the amenities of the countryside and carry out the objects of the Act. I do not think anybody will controvert that the case has been very different in Scotland. Why is it that successive Secretaries of State for Scotland, who, I imagine, are supposed to be wise and sensible people, seem in this particular case to have taken a very narrow and unfortunate view of what the Bill should do? Apparently the view 1192 taken by the Lord Chief Justice of England, under the terms of the Act, is clear. Why the opposite view should be maintained by the Secretaries of State for Scotland, or their legal advisers, I cannot for the life of me understand.
The alternative suggested by the noble Lord, Lord Marley, seems to me to make matters far worse. He referred to a Bill that was introduced in another place recently which would give local authorities power to take proceedings in the Law Courts for removing unsightly advertisements and things of that sort. I think that is a most undesirable system. Just think what the cost would be. It is a matter of taste whether an advertisement or building is unsightly or unsuitable, as Lord Crawford has just said and as I do not think Lord Marley would deny, and therefore some wretched jury in Scotland would be summoned to listen to arguments and almost unending evidence and expert advice on matters of taste, and would have to decide, at huge expense to the taxpayer, whether a building was unsightly or not. I cannot conceive a more unfortunate and objectionable way of carrying out the object of the Act and securing the amenities of the landscape.
Let me suggest that perhaps the best way of dealing with this matter is to talk seriously to the Secretary of State for Scotland, and to ask him to consider the views put forward by the Lord Chief Justice of England and to examine whether they are not a truer intepretation of the Act—it is a matter of law—and whether a by-law that is sanctioned in England ought not to be sanctioned in a similar way in Scotland; in other words, to bring the practice in Scotland into harmony with that of England, since the Act applies equally to both countries. It seems to me to be a preposterous idea that the legal authorities in Scotland should take an entirely different view from that of the highest legal authorities in England, particularly when no Court in Scotland has had any say in the matter. I would therefore suggest to the noble Lord that he should bring all his eloquence and influence to bear upon the Secretary of State for Scotland and endeavour to get him to take the more reasonable view of by-laws to enforce the Act that is taken by the Lord Chief Justice of England.
§ THE SECRETARY OF STATE FOR THE COLONIES (LORD PASSFIELD)
My Lords, I wish to add a few words. There seems to have been an impression that all this has arisen from what I may call some double dose of original sin in the Scottish Office. Surely it must be evident after twenty-five years of practice in the Scottish Office, under any number of Secretaries of State and any number of separate Lords Advocate of various political Parties, that if the action taken has been consistently in one direction, it is either due to a double dose of original sin or there is some explanation. Would it not be a little more charitable to take the view that there is some explanation? The explanation which I gather from the discussion and from what has been said by Lord Marley is that the Scottish law is different from that of this country—a fact which has very often been impressed upon me by representatives of Scotland—and that if you pass an Act of Parliament in identical terms applicable to Scotland as well as to England, apparently the Scottish Courts may interpret that Act in a different way from the English Courts. Apparently the legal advice given for twenty-five years to successive Secretaries of State, not merely by the Lord Advocate for the time being, but by other Scottish lawyers who have been consulted in the matter, has been practically to the effect that has been stated.
It is not a unique case. I know of another case in quite another branch of the law in which an Act of Parliament applicable to both countries has been differently interpreted by a high tribunal in Scotland from the interpretation given to it by a high tribunal in England. If that is the position, is it not a little unreasonable for noble Lords to denounce the present Secretary of State for Scotland or his predecessors—because, of course, there cannot be any distinction between them in this respect—for hesitating to take a course which they have been repeatedly advised, on the highest authority they can obtain upon the practice of the Scottish law, that in all probability such a course would be illegal, and especially when it means that they are required to encourage and approve of action on the part of the 1194 county councils which, when brought into Court, would be held to be unlawful?
Surely in those circumstances the question is one of some difficulty, and there are various alternative ways of dealing with it. One suggestion is that the local authorities and bodies concerned should come together at the Scottish Office and talk the matter over with the Secretary of State for Scotland and his legal officials, who would be able really to explore what can be done for the best. It does not appear to my lay mind what can be done at this moment, and even if a new Bill were brought in there is uncertainty as to how it would have to be drafted in order to get over the method of construction or practice of interpretation of the Scottish Courts. I venture to suggest to the noble Duke that he should be prepared to fall in with that suggestion and have the matter carefully talked over at leisure at the Scottish Office, with the Secretary of State and his legal advisers. The Secretary of State for Scotland has expressed a desire to do what is necessary to meet the difficulty in the best way possible, and the conference that I have mentioned seems to be the common sense course to adopt, and I ask your Lordships to accept that as the best way out for the moment.
THE EARL OF LEVEN AND MELVILLE
My Lords, I had no intention of joining in the debate, but while I should like to say how grateful I am to Lord Pass-field for the very conciliatory manner in which he has dealt with our difficulty, I for one—and I do not think any of us who are interested in this matter are—am even now not very well satisfied, because Lord Passfield says that the trouble is that the matter cannot go through the Scottish Courts. Our trouble is that it has never been given a chance, because the Scottish Office will not let it. You cannot get away from that. In December, 1929, Mr. Thomas Johnston met a deputation from the Association of County Councils in Scotland and other bodies, and was urged to permit the adoption of by-laws so that a test case could, if necessary, be heard. The county councils volunteered to bear the cost of such a case as it was only after the English Courts had upheld the Statute law in open Court that the Home 1195 Office felt at liberty to pass county by-laws freely.
I have here a statement which says:—All that could be extracted from Mr. Johnston on the occasion above referred to was an undertaking that the Scottish office would reconsider its position in consultation with the Law Officers, but in spite of long delay, nothing appears to have been done, and the position remains at a deadlock.That is the position as I see it. What I think we should be satisfied with would be some promise on the part of the Government to bring some pressure on the Scottish Office to allow by-laws to be passed, so that this question may be tested in the Scottish Courts. It is no doubt true that the opinion of the Law Officers has been taken, but legal opinion has also been taken by people interested, who still desire and are prepared to pay for the matter being taken for final decision to the Courts. If that is the ease we find a little difficulty in understanding why there is this extraordinary obstinacy on the part of the Scottish Office, and this steadfast refusal to allow the matter to be brought before the Courts.
THE DUKE OF MONTROSE
My Lords, I understand and appreciate the sympathy of noble Lords opposite, because I feel sure that they are just as anxious to preserve the beauty of our country as we are, but I was a little disappointed when the noble Lord, Lord Marley, came to translate his sympathy into facts. I think it was a pity he referred to the Wigtownshire case, because those by-laws were passed by the county authority when there were small local governing authorities—parish councils—and one parish was different from another. In these days we are trying to sweep away the small local government areas because we feel that they only make confusion worse confounded, and our idea is to have the whole county as the area. If you have one area where one thing is done and another area 1196 where a different thing is done it will not work. In our liquor legislation, if you have a dry area and a wet area, the effect is to drive drink into the wet; and so in the case of advertisements, if you have non-scheduled areas and scheduled areas, the effect will be to drive all advertisements into the nonscheduled areas. It will go on until we are asked to make all areas scheduled, and why have a dozen bites at a cherry when you can do the whole thing at once?
The noble Lord, I think, made a suggestion that we might have a Local Act of Parliament. Has he any idea what it costs to carry through a Local Act of Parliament in this country? Our experience in Scotland has been that the cost is prodigious. I think that the idea of having a consultation at the Scottish Office, where we can talk the matter over around a table, is a very good idea, and having got that reply from the Government I beg leave to withdraw my Motion.
§ Motion, by leave, withdrawn.